A three-judge panel of the D.C. Circuit ruled on Friday in U.S. v. Brice that the First Amendment right of access to judicial proceedings does not extend to sealed material witness proceedings in a federal criminal sex crimes case. The case is the first time a circuit court ruled on the question.

The case grows out of the federal sex crimes conviction of Jaron Brice, a "pimp who prostituted underage girls," according to the court. Two of Brice's victims testified in sealed material witness proceedings, and Brice moved to unseal the proceedings "so that the defense may review the court file and order the preparation of any transcripts necessary to Mr. Brice's appeal." Op. at 4. Brice stated that he would agree to "whatever reasonable conditions the Court deems appropriate, including entry of an appropriate protective order" on the files. Op. at 4. He argued that the First Amendment granted him a right of access to the files.

The court disagreed. It assumed, without deciding, that a qualified First Amendment right of access applied to sealed material witness proceedings under Richmond Newspapers, Inc. v. Virginia. But it ruled that the proceedings here didn't make the cut. The court applied its three-part test from Washington Post v. Robinson (D.C. Cir. 1991):

the "presumption [of access] can be overridden only if (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest."

Op. at 6 (quoting Washington Post). The court deferred to the district court's findings that (1) there was a compelling interest in the witnesses' privacy (including an interest in "not exposing intimate medical and other facts about these then-juveniles"), (2) disclosure would harm this interest by revealing these facts, and (3) the files were so chock-full of these facts that there was no other way (like redaction) to protect the witnesses' privacy. The court rejected Brice's argument that he sought access only for his counsel:

But the First Amendment right of access he asserts is a right of access for the public. Under the asserted First Amendment right of access, there is no precedent for disclosing material only to a defense counsel.